Monwara Begum Vs. Md. Anwarul Islam

Appellate Division Cases

(Civil)

Monwara Begum……………… Petitioner

-Vs-

Md. Anwarul Islam & others……………… Respondents.

JUSTICES

Md. Ruhul Amin J

M.M. Ruhul Amin J.

Md.Tafazzul Islam J

Judgment Dated: 14th December 2006

The State Acquisition and Tenancy Act, 1950, Section 86, 96

For pre-emption of the case land …………..(2)

The High Court Division accordingly held that if the exchange deed was a genuine transaction in that case Nurjahan Begum would not have purchased the self same land which her mother exchanged with opposite party No.14 Abdullah by executing two deeds on the same date. The High Court Division further concluded that Exhibit-1 is a colourable deed created only to defeat, the right of pre-emption of the co-sharers of the holding and accordingly made the Rule absolute. ………………..(8)

Shaheed Alam, Senior Advocate, instructed by Md. Nawab AH, Advocate-on-

PRESENT Record…………………… For the Petitioner

J.N. Deb, Advocate, instructed by Syed Mahbubur Rahman,

Advocate-on-Record. ……………………For Respondent No.l

Respondent Nos.2-54 …………………….Not represented.

Civil Petition For Leave To Appeal No.873 of 2005

(From the judgment and order dated 15.03.2005 passed by the High Court Division in Civil Revision No. 1364 of 2002.)

JUDGMENT

M. M. Ruhul Amin J: This petition for leave to appeal is directed against the judgment and order dated 15.03.2005 passed by a Single Bench of the High Court Division in Civil Revision No. 1364 of 2002 making the Rule absolute.

2. Short facts are that the pre-emptor instituted Miscellaneous Case No. 13 of 1995 under section 96 of the State Acquisition and Tenancy Act, 1950, in the Court of Assistant Judge, Sonatola, Bogra for preemption of the case land stating, inter alia, that the case land originally belonged to Khairuddin Mondal, Azizur Rahman and Abdul Karim. Azizur Rahman died leaving wife Jamila Khatun and one son, the pre-emptor. Abdul Karim died leaving sons opposite party Nos.2,3, 4-6 and one daughter Hasna. Khairuddin died leaving wife opposite party No. 10), four sons, Abdul Jabbar, Abdul Fazal, Tozaul Hoque, Imdadul Hoque and two daughters opposite party Nos.ll and 12. Abdul Fazal died

leaving one wife, opposite party No. 13, one son, opposite party No.14 and daughters, opposite party Nos.15-20. In this way the pre-emptor is a co-sharer. The opposite party No.14 Abdullah sold .19 decimals of land to opposite party No.l on 26.02.1995 without notice as required under section 89 of the State Acquisition and Tenancy Act but fraudulently created deed of exchange by suppressing the real transaction of sale. The opposite party No. 14 on the same date transferred the said land to Nurjahan Begum, daughter of opposite party No. 1. In fact the exchange deed was a colorable one and the transaction between opposite party No.l and 14 was a sale. The opposite party No.l is a stranger purchaser.

3. The pre-emptee-opposite party contested the miscellaneous case by filing written objection denying all the material allegations made in the pre-emption application. The case of the pre-emptee is that transaction between opposite party Nos.l and 14 was purely an exchange and not sale and after exchange the opposite party No.l erected dwelling hut on the case land and has been residing there and also made improvement of the case land by earth filling and excavating tank at a cost of Tk. 50,000/-.

4. The trial court allowed the miscellaneous case with improvement cost of Tk.20,000/-. Being aggrieved the preemptee preferred Miscellaneous Appeal No.34 of 2000 in the court of District Judge, Bogra. The appellate court allowed the appeal. Being aggrieved the pre-emptor moved the High Court Division in revisional jurisdiction and obtained the

Rule which after hearing was made absolute.

5. We have heard Mr. Shaheed Alam, the learned Counsel for the petitioner and Mr. J.N. Deb, the learned Advocate for respondent No.l and perused the judgment of the High Court Division and other connected papers.

6. It is not disputed that the pre-emptor is a co-sharer in the disputed holding and the

pre-emptee is a stranger. The miscellaneous case appears to have been filed within time.

7. The only point for consideration is whether the document Ext.l sought to be pre-empted is an out and out sale deed or an exchange deed. It appears that the opposite party No.l Monowara Begum and opposite party No. 14 Abdullah executed the deed, Ext.l on 26.02.1995 and presented the same at the concerned Subregistry office on the same date. From Ext.2 copy of sale deed, it appears that one Nurjahan Begum, daughter of opposite

party No.l purchased the land which opposite party No. 14 got from opposite party No. 14 Abdullah on the same date that is on 26.02.1995. This fact shows that land which opposite party No.l gave to opposite party No. 14 got back by the deed showing opposite party No.l’s daughter as the purchaser from opposite party No. 14.

8. The High Court Division accordingly held that if the exchange deed was a genuine transaction in that case Nurjahan Begum would not have purchased the self same land which her mother exchanged with opposite party No. 14 Abdullah by executing two deeds on the same date. The High Court Division further concluded that Exhibit-1 is a colourable deed created only to defeat, the right of pre-emption of the co-sharers of the holding and accordingly made the Rule absolute.

9. In view of the discussions made above and in the facts and circumstances of the case, we are of view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the same.

10. Accordingly, the leave petition is dismissed.

Source : V ADC (2008),649

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